Let Punishment Fit the Crime

When a New York jury cleared a midlevel Citigroup executive of allegations he deceived investors who bought bad mortgage securities, jury members made it clear that the government needs to look higher up banks’ food chain for accountability.

“I wanted to know why the bank’s CEO wasn’t on trial,” the jury foreman told The New York Times.

The midlevel executive “structured a deal that his bosses told him to structure, so why didn’t they go after the higher-ups rather than a fall guy?” asked another juror.

These are questions that all Americans should be asking.

There is little disagreement that the inflated asset values that led to the Great Recession were the direct result of predatory actions by some of the country’s largest financial institutions that sold investors risky mortgage securities, frequently misrepresenting their quality and even betting against them. To informed observers of our financial markets, the actions of many top executives were not simply “naive” or “greedy,” but criminal.

Recent history offers a number of cases in which the government responded effectively when there was evidence of major, systemic financial fraud. After the Justice Department assigned more than 1,000 agents to investigate savings and loan crimes in the 1980s, more than 1,000 high-ranking executives served time in prison. More recently, approximately 100 agents were assigned to investigate Enron, resulting in criminal convictions or guilty pleas for the founder and CEO and more than 20 other top executives.

By contrast, the government’s response to the fraud that precipitated the Great Recession has been plagued by a lack of adequate resources, weak oversight and coordination of interagency efforts, and a seeming unwillingness to follow the chain of evidence wherever it may lead. Even though the statute of limitations is expiring in many instances, the government's effort lacks any sense of urgency.

Within months of taking office, the Obama administration formed the Financial Fraud Enforcement Task Force to investigate and prosecute “significant financial crimes.” Two years later, the president announced formation of the Residential Mortgage Backed Securities Working Group in his 2012 State of the Union Address. When New York attorney general Eric Schneiderman joined the group, he predicted fast action: “This is not something people are going to have to sit around for six months before they see results.” Six months later, those results are hard to find.

The Justice Department has been prosecuting disconnected small fry: rogue real estate agents, appraisers, mortgage brokers and homebuyers—about 2,100 of them, according to attorney general Eric Holder. Since these individuals were not tied to top insiders at the major financial institutions, prioritizing these prosecutions will not lead up the chain to those executives whose actions brought the economy to its knees.

In addition, federal prosecutors appear to be veering away from criminal prosecutions in favor of civil actions against alleged wrongdoers under a section of the Financial Institutions Reform, Recovery and Enforcement Act. These civil actions require only a preponderance of the evidence rather than the “beyond a reasonable doubt” standard that applies to normal criminal prosecutions.

Civil penalties under FIRREA are ridiculously low, with a maximum cap of $1 million, and up to $5 million for continuing violations. The basic cap can be increased to include the dollar benefit received by the perpetrator or the loss suffered by the victim. But imagine if bank robbers who use guns instead of computers knew that the worst-case penalty they might face would only be to give back the money they stole.

Even if civil penalties were increased, that would not provide the same deterrent to top executives as knowing that they personally could end up in prison. In rejecting a $285 million settlement proposed last year by the Securities and Exchange Commission and Citigroup, U.S. District Judge Jed S. Rakoff noted that such sums are “pocket change to any entity as large as Citigroup,” and are seen by many Wall Street firms “as a cost of doing business.” (According to the SEC, Citigroup gave investors false information about a mortgage fund that included securities that it believed would fail. The bank bet against its own customers and made $160 million when the fund’s value declined, while investors lost $700 million.)

Real deterrence can work, as the aftermath of the savings and loan scandal demonstrates. In that case, a Democratic Congress worked with a Republican president worked across party lines to increase appropriations for prosecuting financial crime, raise penalties, and lengthen the statute of limitations. Since then, we have not seen another widespread crime spree based on the fraudulent insider lending practices that took place before that.

We need similar reforms now. But we have a Congress bound by gridlock and unable to act. In the meantime, the president, attorney general and federal agencies must use all the resources at their disposal to help prevent a future economic collapse by promptly and urgently prosecuting top executives for their crimes.

Bart Dzivi is an attorney who served as special counsel to the Financial Crisis Inquiry Commission in 2009 and 2010.

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